and, by order under their hands and seals, direct payment by the person liable, with the costs and charges of the proceedings. Payment of the amount may then be enforced by the complainant in the same way as rent-charge in arrear1 (5 & 6 Vict. c. 54, ss. 16 and 17). Again, any owner or occupier paying, after notice of the tithe owner's intention to distrain, rent-charge which became due during the previous tenancy, from the tenant by virtue of the terms of his holding, may recover the amount from the previous tenant as a simple contract debt (14 & 15 Vict. c. 25, s. 4).

1 I.e., by distress on taking possession of the land.

Ch. VIII.

CHAPTER IX.

EXTRAORDINARY TITHE RENT-CHARGE.

THIS rent-charge, which has been the subject of so much recent abuse, and so many disturbances, was in its inception perfectly equitable and reasonable, and, as will be seen, in many instances it owes its existence entirely to the action of the owner of the land charged. It can hardly be disputed that upon the commutation of the tithe of produce into a rent-charge issuing out of the land, it was only just that land bearing a valuable crop, the tithe of which would be of greater value than that of ordinary produce, should be liable to a higher rent-charge than land under an ordinary crop. On the question whether it was desirable that any check should be imposed on the cultivation of produce of this kind on land previously cultivated in another way no opinion is expressed; it is only sought to show that the existence of such a charge is amply justified by the nature of tithes at the time of its first creation.

The provisions in the Acts bearing upon this subject are somewhat confused, and, with the exception of those relating to redemption, have now little practical im

1 See next page, and note thereto.

portance; it may, however, be convenient shortly to set Chap. IX. them out in a collected form.

The extraordinary charge was imposed upon lands cultivated in the following ways, viz.: as

1. Hop-grounds; 2. Market gardens; 3. Orchards; 4. Fruit plantations; and 5. Mixed plantations of hops and fruits.

It will be convenient to consider each of these in turn, taking one (e. g. hops) first, and considering all the provisions affecting it, and then the others in turn, pointing out in what way the provisions affecting them agree with and differ from those affecting the first.

1. Hop-grounds.

The extraordinary charge was created in three

ways:

(1) Where upon the commutation of tithes any land was cultivated as hop-ground, sect. 40 of the principal Act, sects. 32 and 33 of 2 & 3 Vict. c. 62, and sect. 18 of 3 Vict. c. 15 provided that, upon application being made by the owner of the hop-ground,1 the tithes should be separately valued according to the average rate of composition for the tithes of hops for seven years preceding Christmas 1835, within a district to be in each case assigned by the commissioners, or an assistant commissioner, or by a parochial agreement. This

1 Apparently there was no power to fix any extraordinary charge upon lands which were cultivated as hop grounds at the time of the commutation, except on the application of the owner of the land so cultivated.

2 Apparently it could only be assigned by parochial agreement in the case of hop grounds (sect. 33 of 2 & 3 Vict. c. 62).

Chap. IX. district might be the parish or lands in respect of which the notice requiring the tithes to be separately valued had been given, or any part or parts of such parish or lands.

The value of the tithes was to be estimated as chargeable to all parliamentary, parochial, county, and other rates, charges, and assessments to which the tithes might be liable, and this value, when arrived at, either by assessment by the commissioners or by agreement, was to be added to the value of the other tithes of the parish.

For the purpose of ascertaining the extent of the land cultivated as hop grounds or market gardens, the person to whom any extraordinary charge upon the land is or would be payable, his agents and servants may enter at all reasonable times upon the land, and make an admeasurement and plan of it, without molestation (sect. 43 of 23 & 24 Vict. c. 93).

The amount charged by the apportionment1 upon any hop grounds in any district is distinguished into two parts, called the ordinary and extraordinary charge, the extraordinary charge being a rate per imperial acre, and the award of the commissioners or parochial agreement might declare the amount of extraordinary charge per acre with which all lands chargeable in the future with extraordinary charge within that district should be chargeable.

1 By sect. 19 of 3 Vict. c. 15 the amount of extraordinary rentcharge to be charged on the lands of each individual owner need not be distinguished, so long as the acreable amount of extraordinary charge for all the lands in the district is inserted in the apportionment.

(2) In the case of any land situated within a district Chap. IX. where an extraordinary charge had been settled, and not cultivated as hop ground at the time of the commutation, but subsequently becoming so, an additional rentcharge per acre, equal to the extraordinary charge per acre on hop grounds in the district, became chargeable after the first year of such cultivation, but only half such charge was payable during the second year. Upon the change in cultivation the land apparently became ipso facto liable to this extra charge without any application to the commissioners.

(3) In the case of any land not situated within a district where an extraordinary charge had been settled, and not cultivated as hop ground at the time of the commutation, but subsequently becoming so, the commissioners charged the lands with an additional or extraordinary charge only on the application of some person interested. In this case sect. 42 of 23 & 24 Vict. c. 93 gave the commissioners power to declare the lands in the parish in which the newly cultivated hop grounds were situated a district within which the extraordinary charge then fixed should be thereafter payable.1

In this case, as in the last, no rent-charge was payable in the first year, and only half in the second. 2. Market Gardens.

The word "gardens," which occurs alone in one or two places, without the qualifying word "market," is

1 This power was exerciseable by the commissioners, even though no district had been assigned in the parish at the time of the commutation (Russell v. Tithe Commissioners, L. R. 6 C. P. 596).